Schmidt on Theodor Sternberg and the "Closet of Conceptualism"

Over at the blog "History | Sexuality | Law," Katharina Isabel Schmidt, a PhD candidate in history at Princeton University and a JSD candidate in law at the Yale Law School, has posted Theodor Sternberg and the Closet of Conceptualism.  The essay commences:

Sometime in the mid-1930s, German jurist Theodor Sternberg (1878-1950) concluded that law and love were incompatible. In one of his “erotosophical” fragments, he claimed that affective bonds thrived under anarchy. Love, for Sternberg had to be free from egoism and compulsion, eschew both duty and obligation. “Coitus,” especially, was divine in origin—God’s love for the world incarnate—and just like God’s love was limitless, sexuality knew no law.

--Dan Ernst

Nadal, "Queering Law and Order: LGBTQ Communities and the Criminal Justice System​"

Lexington Books has published Queering Law and Order: LGBTQ Communities and the Criminal Justice System​ (2020), by Kevin L. Nadal (John Jay College of Criminal Justice and Graduate Center at the City University of New York). A description from the Press:

Throughout US history, lesbian, gay, bisexual, transgender, and queer (LGBTQ) people have been pathologized, victimized, and criminalized. Reports of lynching, burning, or murdering of LGBTQ people have been documented for centuries. Prior to the 1970s, LGBTQ people were deemed as having psychological disorders and subsequently subject to electroshock therapy and other ineffective and cruel treatments. LGBTQ people have historically been arrested or imprisoned for crimes like sodomy, cross-dressing, and gathering in public spaces. And while there have been many strides to advocate for LGBTQ rights in contemporary times, there are still many ways that the criminal justice system works against LGBTQ and their lives, liberties, and freedoms.

Queering Law and Order: LGBTQ Communities and the Criminal Justice System examines the state of LGBTQ people within the criminal justice system. Intertwining legal cases, academic research, and popular media, Nadal reviews a wide range of issues—ranging from historical heterosexist and transphobic legislation to police brutality to the prison industrial complex to family law. Grounded in Queer Theory and intersectional lenses, each chapter provides recommendations for queering and disrupting the justice system. This book serves as both an academic resource and a call to action for readers who are interested in advocating for LGBTQ rights.

Advance praise:

"Queering Law and Order is the most comprehensive review of the justice system and its effects on LGBTQ communities to date. It is informative, insightful, and thought-provoking, mixing stories and data to help bring to life the many instances that the criminal justice system has failed sexual minorities. Kevin Leo Yabut Nadal is able to show again and again how sexual minorities have suffered at the hands of an unjust criminal justice system. He does an outstanding job of weaving together a cohesive narrative that articulates what many of us suspected—we need to be more skeptical and critical of our justice system." — Roddrick Colvin

More information is available here. H/t: New Books Network.

-- Karen Tani

Lee to Lecture on Contagious Diseases and the Rule of Law in the British Empire

[We have the following announcement from the Transnational Legal History Group Seminar of the Centre for Comparative and Transnational Law of the Chinese University of Hong Kong.  DRE]

‘Protecting Women and Morals? Contagious Diseases Laws and the “Rule of Law” Ideal in the British Empire, 1886-1899’ by Dr. Jack Jin Gary Lee (Online)

What does it mean for liberal empires to invoke the rule of law, on the one hand, and to expand their
control over subject populations, on the other? This article examines debates over the freedom of women during the repeal of the Contagious Diseases (CD) ordinances by the Protection of Women and Girls ordinances in the directly ruled colonies of Hong Kong and the Straits Settlements (Singapore, Penang and Malacca). Originating in Hong Kong, CD laws were used to contain the spread of venereal diseases among soldiers and other populations across the modern British empire. Officials employed these laws to police prostitution and subject working-class, “native” women to medical surveillance. While the compulsory medical examination of women ended with the repeal of CD laws across the British Empire, the Straits Settlements and Hong Kong continued to regulate prostitution for the protection of “native” women and their freedom, revealing the peculiar significance of the “rule of law” under liberal imperialism. In a historical ethnography of the “rule of law” ideal, Dr. Jack Jin Gary Lee demonstrates how officials utilized its central premise of individual liberties as a comparative frame of evaluation to formulate a racially differentiated mode of gendered sovereignty.

Dr. Jack Jin Gary Lee’s research and teaching examines the significance of culture, law and politics in social processes of state-making and governance. He is working on a book on the significance of law and race in the making of “direct rule” in the modern British Empire. Focusing on the re-constitution of Jamaica and the Straits Settlements (Singapore, Penang and Malacca) as Crown Colonies in the latter half of the nineteenth century, this project examines the workings (and postcolonial legacies) of liberal imperialism in relation to colonies marked as plural societies. Notably, Lee’s dissertation on this topic won the University of California, San Diego’s 2018 Chancellor’s Dissertation Medal (Social Sciences).

Register here by 5pm, 22 September 2020 to attend the seminar.

Weekend Roundup

• From the Washington Post's Retropolis section, a profile of Mitsuye Endo, the under-appreciated Japanese-American citizen whose legal challenge to the Japanese American internment "forced the government to close the camps and allowed thousands of Japanese Americans to return to the West Coast."  

• Speaking of unlawful confinement, the History Office of the Federal Judicial Center has posted this introduction to federal habeas corpus jurisdiction. To its bibliography we would add Amanda Tyler's Habeas Corpus in Wartime (2017) and Eric Freedman's Making Habeas Work (2018).

• In individual posts we have mentioned several of the articles in the University of Pennsylvania Law Review's May 2019 symposium on administrative constitutionalism. The full symposium is now available here. It includes contributions by Karen M. Tani (University of California, Berkeley), Gregory Ablavsky (Stanford University), Joanna L. Grisinger (Northwestern University), Sophia Z. Lee (University of Pennsylvania), Jeremy K. Kessler (Columbia University), Bertral L. Ross II (University of California, Berkeley), William J. Novak (University of Michigan), Cary Coglianese (University of Pennsylvania), and William N. Eskridge, Jr. (Yale Law School). 

• From the Washington Post's "Made by History" section: Karin Wulf (Omohundro Institute of Early American History & Culture/William & Mary) on how "keeping historical records public and easily accessible" enables us to think for ourselves about impeachment.    

• Writing for JOTWELL's Contracts section, Daniel Barnhizer (Michigan State University) has posted an admiring review of "Cheating Pays," by legal historian Emily Kadens (Northwestern Pritzker School of Law). The article, which was based on a historical case study, appeared in Volume 119 of the Columbia Law Review.

• Available online from Law and History Review and Cambridge Core: Jousting Over Jurisdiction: Sovereignty and International Law in Late Nineteenth-Century South Asia, by Priyasha Saksena.

• The blog of the Cato Institute has Roger Pilon’s notice of David N. Mayer, who died last month.  Mayer, professor emeritus of law and history at the Capital Law School, was the author of The Constitutional Thought of Thomas Jefferson (University of Virginia Press, 1994).

• ICYMI: Ryan Husey, The Carceral State and Prison Activism, an H-Net Book Channel Essay.

• In the op-ed section of the New York Times: Lauren MacIvor Thompson (Georgia State University) reminds readers that "Women Have Always Had Abortions."  

• Via History News Network: "Over 1500 Historians and Scholars Sign Letter Urging Impeachment." Also, Robert Hardaway (University of Denver Sturm College of Law) on "Impeachment and the Electoral College."

• Over at New Books in Law (part of the New Books Network): an interview with G. Edward White (University of Virginia) about Volume III of Law in American History (Oxford University Press, 2019). Also, Talitha LeFlouria (Carter G. Woodson Institute at the University of Virginia) talks about her book Chained in Silence: Black Women and Convict Labor in the New South (University of North Carolina Press, 2016).

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Shaw, Siegel and Murray's Introduction to "Reproductive Rights and Justice Stories"

Katherine Shaw, Yeshiva University-Benjamin N. Cardozo School of Law, Reva Siegel, Yale Law School, and Melissa Murray, New York University School of Law, have posted their introduction to Reproductive Rights and Justice Stories:

This book of "Reproductive Rights and Justice Stories" brings together important cases involving the state regulation of sex, childbearing, and parenting. We tell the story of twelve cases, some canonical and some far less known, involving contraception, abortion, pregnancy, and parenthood. The chapters tell their stories using a wide-lens perspective that illuminates the complex ways law is forged and debated in social movements, in representative government, and in courts.

As a field, "reproductive rights and justice” is relatively new, and its contours are quite broad, encompassing the various ways law shapes the decision “whether to bear or beget a child” and the conditions under which families are created and sustained. Some of the cases included in this volume are very much part of the constitutional law canon; more are not. Until recently, these cases have not often been conceived of as part of a unified field of law.

This volume remedies that oversight. Reading this group of cases together makes visible forms and effects of reproductive regulation that are less evident when the cases are read in isolation or in their more familiar doctrinal contexts. The framework of “reproductive justice” highlights the intersecting relations of race, class, sexuality, and sex that shape the regulation of reproduction. It examines the many ways law shapes the choice to have, as well as to avoid having, children. The volume addresses decisionmaking about contraception and abortion—the traditional subject matter of “reproductive rights”—in this larger reproductive justice framework, and locates this body of law alongside cases that consider a wider range of issues, including sterilization, assisted reproductive technology, pregnancy discrimination, the criminalization of pregnancy, and access to reproductive health care.

The chapters in this volume narrate the cases in ways that enlarge the field in which we analyze the work of courts. To be sure, the chapters tell stories about the individual litigants and lawyers behind important cases. But the stories recognize courts as but one of many institutions in our constitutional democracy, and they show how conflicts over law unfold in the institutions of civil society (medicine, religion, media), in democratic politics (social movements, political parties, and representative government), as well as in the courts. The stories feature ordinary women and men struggling with laws that govern the ways they make families, and show how members of the community, government officials, lawyers, and judges respond. In the process, these stories situate litigation histories in a larger social field, revealing the interplay of bottom-up and top-down forces that provoke, shape, and legitimate judicial decisions, and the role that struggle over courts and rights plays in forging new norms.

--Dan Ernst

Weekend Roundup

• The PBS NewsHour-New York Times book club, “Now Read This,” has selected Adam Winkler’s We the Corporations as its October selection.  Here Professor Winkler discusses his writing process.

• Descendants from the parties in Dred Scott v Sandford, Plessy v Ferguson and Brown v Board of Education meet at the second Dred Scott Reconciliation Conference, to be held today from 8:30 a.m. to 1:30 p.m. at the Mahler Ballroom, 4915 Washington Blvd. in St. Louis.  More.

• Annette Gordon-Reed, the Charles Warren Professor of American Legal History at Harvard Law School, and Peter S. Onuf, the Thomas Jefferson Memorial Foundation Professor Emeritus in the Corcoran Department of History at the University of Virginia, will co-present  “Jefferson: Then and Now,” the 2019 Fall Herber P. Lefler Lecture on Tuesday, Oct. 15, at Carleton College. More.

• Check out the British North American Legislative Database, 1758-1867, an impressive open-access resource created by Elizabeth Mancke and her team at the University of New Brunswick

• This New York Times op-ed by Josh Chafetz (Cornell Law), on the impeachment process and congressional "hardball," includes some interesting legal history.

• ICYMI:  9 Landmark Supreme Court Cases That Shaped LGBTQ Rights in America (Time)

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

The Strange Symbiosis of Libel and the Popular Press

My thanks once more for the opportunity to be your guest blogger this month. This will be my final post.

The Strange Symbiosis of Libel and the Popular Press

In late 1920, London daily newspapers had a field day recounting the scene before the King’s Bench and a special jury. A slander case pitted writer Marguerite Radclyffe-Hall against St. George Lane Fox-Pitt, son of famed archeologist Augustus Pitt-Rivers. Fox-Pitt had recently learned from Admiral Troubridge that Radclyffe-Hall had taken up with the Admiral’s estranged wife. Fox-Pitt used this information to discredit Radclyffe-Hall at the Society of Psychical Research, purportedly calling her a “grossly immoral woman.” In court, Fox-Pitt denied that he had ever called the plaintiff “immoral.” Or, he equivocated, if he had done so, he had not meant it maliciously. Indeed, if he meant it at all, the claim pertained to her work, not to Radclyffe-Hall herself. According to the Daily Mirror, the courtroom burst into laughter as Fox-Pitt attempted to describe the immorality implicit in Radclyffe-Hall’s psychic account of a “spook horse” bathing in heaven. Not even the judge seemed able to move past the strangeness of spiritualist study to follow Fox-Pitt’s point [1]. Radclyffe-Hall won her slander suit, receiving £500 damages, a decision upheld on appeal in 1921 [2]. She won thanks to the little-known 1891 Slander of Women Act that allowed women (and only women) in England and Wales to sue for sexual slander without having to prove damages. The law would remain on the books until 2013.

I have been thinking quite a bit about this Act since starting research on reputation. It gets mentioned regularly in legal primers as one of the few caveats in British defamation law. Whereas the law generally requires proof of financial damages in cases of oral slander, the 1891 Act exempted women, since the quintessential middle-class Victorian woman presumably had no market income to lose. There are only a few hits when one searches for cases in the law reports, not leaving the historian much to draw from. If one shifts one’s view from law reports to the newspapers, however, one finds several dozen cases over the law’s 122-year life, the bulk of them taking place between its 1891 passage and 1940. With each expansion of the online British Newspaper Archive, I find more. Some of the stories are set up as general-interest stories, while other slander of women cases were less visible. Editors clearly deemed Radclyffe-Hall’s trial to be good entertainment for readers, and covered it on the first or second pages of their papers.   

As a historical repository of courtroom drama, newspapers are unparalleled sources. But they are far from being neutral parties, of course. It is perhaps hard to find an area of research in which this is more the case than in questions surrounding defamation. Members of the press were outspoken in their critique of libel law at every stage. Nevertheless, journalist critics of libel laws rarely advocated the outright abolition of defamation law. Radclyffe-Hall’s case and Kelly v. Sherlock (see my previous post) offer useful ways of thinking about newspapers’ relationship with defamation cases and how historians might take the relationship into account.

Radclyffe-Hall’s case was a society case. It was entertaining, and it would sell well. Thanks to amendments to the libel laws in the 1880s, news outlets could report on court proceedings so long as the reporting was done accurately and without malice. Targeting an ever-wider readership, especially among women, mass newspapers could bank on the appeal of a social celebrity like Radclyffe-Hall. The seeming ridiculousness of the whole affair likely made the courtroom drama all the more appealing. The laughter in the courtroom stood in for newspaper editorializing, which would have been off limits—or, rather, open to libel charges in turn. Indeed, the entire scene underscores an implicit agreement about the bounds of civility in the period. It was permissible to laugh at Fox-Pitt for his unchivalrous and inept condemnation of Radclyffe-Hall. His inhibitions about addressing her sexuality in the courtroom can be attributed to the Slander of Women Act’s blanket prohibition on criticism of a woman’s virtue. But the courtroom and wider public also seemed remarkably at ease with Radclyffe-Hall’s well-known lesbianism a decade before she published her seminal (and censored) Well of Loneliness. It helped, of course, that the case involved a psychical society, not politics; the stakes were lower. This could not be said about Kelly v. Sherlock. 

Sherlock got into trouble not because he published about Kelly but because of the manner in which he discussed Kelly. Kelly was indeed fair game. He’d made himself a target of public interest, as Baron Bramwell ruled in the trial at the Manchester assizes in August 1865. While there might be a privilege in sermonizing to one’s flock (Bramwell was doubtful, but upheld it), there was no pastoral privilege to criticize civil officials. By so doing, Bramwell held, Kelly opened himself to public rebuke [3]. Sherlock’s infraction, then, was not criticizing Kelly, but doing so in an overly vitriolic manner. It was a contemptuous attack on his professional persona. Newspapers that reported on Kelly and Sherlock could do so without feeling that they were betraying their profession or inviting trouble themselves because, to them, the case helped clarify the boundaries of legitimate journalistic practice. Journalists were not unqualified defenders of journalistic latitude, and saw no reason to be so. They were comfortable with a legally-enforced code of journalistic civility.

It is significant when even those with an interest in criticizing a norm assent to it in principle, since this reflects the power of a social norm. On my bus ride home today, I was reading the 1967 Report of the Joint Committee on Censorship of the Theatre. In his testimony to the committee, Kenneth Tynan, then fighting to have Hochhuth’s Soldiers staged, demanded the end of censorship. His phrasing early in his testimony is of note: “there should be no restriction short of libel on the presentation of historical characters living or dead” [4]. 

[1] Daily Express, November 19, 1920, p. 1; Daily Mirror, November 19, 1920, p. 2. 

[2] "Court of Appeal." Times, March 16, 1921, p. 5.

[3] 686 Kelly v Sherlock, Queen's Bench Division, 13 June 1866, (1865-66) L.R. 1 Q.B. 686, 689.

[4] Testimony of Kenneth Tynan January 24, 1967, as found in the Minutes of Evidence appended to the Joint Committee on Censorship of the Theatre, p. 80.

--Caroline Shaw

Weekend Roundup

• The National History Center's next Congressional briefing will be on the history of health care in the U.S.  It will be Friday, June 28, 2019 from 10:00 am-11:00 am, in the Gold Room, Rayburn House Office Building, Room 2168.  The speakers will be Beatrix Hoffman, Northern Illinois University, and Nancy Tomes, Stony Brook University. Alan Kraut, American University, will moderate.  Saith the NHC: “Why is the American health care system so costly, complex, and challenging for those who seek to legislate improvements in access to and quality of care? The answers are rooted in the historical forces that gave rise to the current system. Two leading authorities on the history of American health care will explain how we got where we are today.” 

• Deadline approaching:  Applications for ASLH Cromwell Research Fellowship grants for early career scholars are due on July 1.

• Over at Jotwell, Joanna Grisinger, Northwestern University, has posted The Federal Trade Commission as National Nanny, her appreciation of Rachel Louise Moran's "Fears of a Nanny State: Centering Gender and Family in the Political History of Regulation," in Shaped by the State: Toward a New Political History of the Twentieth Century 317 (Brent Cebul, Lily Geismer, and Mason B. Williams, eds., 2019).

• ICYMI:  The Supreme Court Rulings That Have Shaped Gay Rights in America (History Channel).  Why birthright citizenship is crucial to democratic governance, by Marixa Lasso, Universidad Nacional de Colombia, on WaPo’s "Made by History."  Also on WaPo's MbH: Karin Wulf, Omohundro Institute of Early American History & Culture and William & Mary, on What Naomi Wolf and Cokie Roberts teach us about the need for historians.

• And at the Conversation: Treva B. Lindsey, The Ohio State University provides this concise history of the US abortion debate, while Mark Fathi Massoud, UC Santa Cruz offers insights into the interaction between colonialism and Islamic law in Sudan.

• Update: Anna Jarvis interviewed on winning the R. Roy McMurtry Fellowship to research her great-great grandfather, Edward Jarvis, chief justice of the supreme court of Prince Edward Island (CBC).

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Weekend Roundup

• The journal Critical Analysis of Law has published a special issue on Queer Legal Studies. Readers may be interested in the contribution by Gowri Ramachandran (Southwestern Law School), on "The Legal History and Queerer Future of 'Me Too.'"

• ICYMI, PBS's "Frontline" ran an episode this week ("Supreme Revenge") that went "inside the no-holds-barred war for control of the Supreme Court." The episode investigated "how a 30-year-old grievance" (over the Robert Bork nomination) "transformed the court and turned confirmations into bitter, partisan conflicts." Hat tip: Chris Schmidt, who also live-tweeted it.

• The Take Care blog is hosting a symposium on Reproductive Rights and Justice Stories, edited by Melissa Murray, Kate Shaw, and Reva Siegel. Lots of great content has gone up so far.  

• From the Washington Post's "Made by History" section: Matthew Guariglia on "what the loss of the New York police museum means for criminal-justice reform." 

• We join our friends at the Canadian Legal History blog in mourning the passing of Professor Ian Bushnell, a noted historian of the Canadian judiciary.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Murray, Shaw, & Seigel, eds., "Reproductive Rights and Justice Stories"

New from Foundation Press, in the "Law Stories" Series, Reproductive Rights and Justice Stories, edited by Melissa Murray (NYU Law), Katherine Shaw (Benjamin N. Cardozo School of Law), and Reva B. Siegel (Yale Law School). A description from the Press:

This book tells the movement and litigation stories behind important reproductive rights and justice cases. The twelve chapters span topics including contraception, abortion, pregnancy, and assisted reproductive technologies, telling the stories of these cases using a wide-lens perspective that illuminates the complex ways law is debated and forged―in social movements, in representative government, and in courts. Some of the chapters shed new light on cases that are very much part of the constitutional law canon―Griswold v. Connecticut, Roe v. Wade, Planned Parenthood v. Casey, Nevada Department of Human Resources v. Hibbs. Others introduce the reader to new cases from state and lower federal courts that illuminate paths not taken in the law. 

Reading the cases together highlights the lived horizon in which individuals have encountered and struggled with questions of reproductive rights and justice at different eras in our nation’s history―and so reveals the many faces of law and legal change. The volume is being published at a critical and perhaps pivotal moment for this area of law. The changing composition of the Supreme Court, increased executive and legislative action, and shifting political interests have all pushed issues of reproductive rights and justice to the forefront of contemporary discourse. The volume is suited to a wide range of law school courses, including constitutional law, family law, employment law, and reproductive rights and justice; it could also be assigned in undergraduate or graduate courses on history, gender studies, and reproductive rights and justice.

All of the editors have contributed solo- or co-authored essays. The other contributors are: Samuel R. Bagenstos (University of Michigan Law); Khiara M. Bridges (Boston University School of Law); Deborah Dinner (Emory Law); Cary Franklin (University of Texas at Austin School of Law); Linda Greenhouse (New York Times/Yale Law School); Maya Manian (University of San Francisco School of Law); Serena Mayeri (University of Pennsylvania School of Law); Douglas NeJaime (Yale Law School); Priscilla A. Ocen (Loyola Law School, Los Angeles); Neil S. Siegel (Duke Law).

It looks like some of the essays are available on SSRN. For example, here is Reva Siegel and Linda Greenhouse's chapter on "The Unfinished Story of Roe v. Wade."

Quinn on a "Fallen" Woman Judge

Mae C. Quinn, University of Florida Levin College of Law, has posted Fallen Woman (Re)framed: Judge Jean Hortense Norris, New York City - 1912-1955, which is forthcoming in the University of Kansas Law Review 67 (2019): 451-512:

Jean H. Norris (wiki)

This Article seeks to surface and understand more than what is already known about Jean Hortense Norris as a lawyer, jurist, and feminist legal realist—as well as a woman for whom sex very much became part of her professional persona and work. This article analyzes the lack of legal protections provided to Norris and troubling nature of her removal from the bench given the evidence presented and standards applied. Finally, this Article seeks to provide further context for Jean Norris’s alleged misconduct charges to suggest that as a woman who dared to blur gender boundaries, embrace her professional power, and offer a unique vision of the “fairer sex,” she was held to a different standard than her male peers and made to pay the price with her career. In these ways, this Article provides a more complete picture of Jean Norris beyond a shamed and disrobed judge. And it begins to move Judge Norris out of legal history’s margins so that she may be remembered as more than mere mugshot in the American imagination.

--DRE

Hinchy on gender and sexuality in colonial India

Out now with Cambridge University Press is Governing Gender and Sexuality in Colonial India: The Hijra, c.1850-1900 by Jessica Hinchy, Nanyang Technological University, Singapore. From the press:

In 1865, the British rulers of north India resolved to bring about the gradual 'extinction' of transgender Hijras. This book, the first in-depth history of the Hijra community, illuminates the colonial and postcolonial governance of gender and sexuality and the production of colonial knowledge. From the 1850s, colonial officials and middle class Indians increasingly expressed moral outrage at Hijras' feminine gender expression, sexuality, bodies and public performances. To the British, Hijras were an ungovernable population that posed a danger to colonial rule. In 1871, the colonial government passed a law that criminalised Hijras, with the explicit aim of causing Hijras' 'extermination'. But Hijras evaded police, kept on the move, broke the law and kept their cultural traditions alive. Based on extensive archival work in India and the UK, Jessica Hinchy argues that Hijras were criminalised not simply because of imported British norms, but due to a complex set of local factors, including elite Indian attitudes.

Praise for the book:

 "This brilliantly researched and highly original book reveals how the colonial state equated gender disorder with political disorder. Highly relevant to contemporary Indian debates on gender, sexuality and law, this is a masterful account of the relationship between colonial governance and gender expression, sexual behaviour, domestic arrangements and intimate relationships." -Clare Anderson

Further information is available here.

-Mitra Sharafi

Sepper and Dinner on Sex in Public

Elizabeth Sepper, Washington University in Saint Louis School of Law, and Deborah Dinner, Emory University School of Law, have posted Sex in Public, which is to appear in the Yale Law Journal:

This Article recounts the first history of sex in public accommodations law—a history essential to debates that rage today over gender and sexuality in public. Just fifty years ago, not only sexual minorities but also cisgender women were the subject of discrimination in public. Restaurants and bars displayed "men-only" signs. Women held secondary-status in civic organizations, like Rotary and Jaycees, and were excluded altogether from many professional bodies, like press clubs. Sports—from the Little League to the golf club—kept girls and women from achieving athletic excellence. Insurance companies and financial institutions subsumed married women's identities within those of their husbands. Over the course of the 1970s, the feminist movement protested and litigated against sex discrimination in public accommodations. They secured state laws opening up commerce and leisure for "full and equal enjoyment" by both sexes. At the time "sex" was added to state public accommodations laws, feminists, their opponents, and government actors understood sex equality in public to signify more than equal access to the public sphere. It also implicated freedom from the regulation of sexuality and gender performance and held the potential to transform institutions central to dominant masculinity, like baseball fields and bathrooms. This history informs the interpretation of public accommodations laws in controversies from same-sex couples' wedding cakes to transgender people's restroom access.

Munshi on White Slavery in an Age of Contract

Sherally Munshi, Georgetown University Law Center, has posted White Slavery and the Crisis of Will in the Age of Contract, which appeared in the Yale Journal of Law & Feminism 30 (2018): 327-69:

Recognizing human freedom is never as simple as acts of legal pronouncement might suggest. Liberal abstractions like freedom and equality; legal formulations of personhood, free will, and contract; the constructed divisions between public and private, self and other, home and market on which the former are predicated — these are often inadequate to understanding, let alone realizing, the shared aspirations they supposedly define. By the same token, the dense and dynamic relations of power that characterize any liberal society overwhelm and exceed our critical vocabulary. “Racism,” “sexism,” and “capitalism” powerfully name structures of inequality, but they fail to capture the full spectrum of social relations, practices, and exchanges that reproduce inequality — deep structures of feeling, unspoken common sense, the stories we tell ourselves about the world and our places in it. Focusing on an early twentieth-century case involving an immigrant convicted of “white slavery,” accused of “mesmerizing” his secretary, this Article explores the ways in which the white slave panic and spiritualist practices reflect a set of anxieties about the nature of agency and consent obscured by the universalizing and formalist abstractions of contract law and theory. Through a close reading of competing narratives surrounding the case, this Article seeks to investigate some of the ways in which the rhetorical distortions of law affect the lives of its most vulnerable subjects.

Fernandez on Kuby, "Conjugal Misconduct"

Over at JOTWELL, Angela Fernandez (University of Toronto) has posted an admiring review of Conjugal Misconduct Defying Marriage Law in the Twentieth-Century United States (Cambridge University Press, 2018), by William Kuby (University of Tennessee-Chattanooga). Here's a taste:

The rhetoric of a “marriage crisis” is a familiar one. William Kuby’s excellent new book gives us an incisive history of the way that a sense of crisis was invoked in debates about a variety of forms of marital misconduct and the backlash they inspired in the progressive era. Kuby expertly marches us through the way that late nineteenth and early twentieth-century American judges, state legislators, polemicists, and reformers of all stripes relied on ideas of common sense public policy and moral decency to police marriage in each of the five instances of marital misconduct he examines.

Read on here.

Witte on Calvin on Marriage

John Witte, Emory University School of Law, has posted The Marital Covenant in John Calvin’s Geneva, which appears in Political Theology 19 (2018): 282-299:

John Calvin (LC)

This Article analyzes John Calvin’s reformation of Western family law in sixteenth century-Geneva. Calvin depicted marriage as a sacred and presumptively enduring union, but also a conditional and breakable covenant with distinct and discernible goods and goals that couples and communities alike had to support. This covenantal framework gave Calvin new rationales for old rules concerning marital and non-marital sex and cohabitation, courtship and weddings, procreation, nurture, and education of children, and the punishment of adultery, polygamy, and “unnatural” sex within and beyond the marital bed. But Calvin also set out new teachings on the proper communal formation and maintenance of the marital covenant, and introduced into Genevan law the rights of husbands and wives alike to divorce and remarry in cases of hard fault.

Barbas's "Confidential, Confidential"

Samantha Barbas, Buffalo Law, the author of et al. Newsworthy: The Supreme Court Battle Over Privacy and Press Freedom (Stanford University Press, 2017), and The Laws of Image: Privacy and Publicity in America (Stanford University Press, 2015, has published Confidential Confidential:The Inside Story of Hollywood's Notorious Scandal Magazine (Chicago Review Press):

Confidential Confidential presents a thoroughly researched history of America's first celebrity gossip magazine and the legal disputes that led to its demise.

With an extensive network of informants, Confidential Magazine soiled celebrities' pristine reputations by publishing the stars' scandalous secrets including extramarital affairs, drug use and taboo sexual practices in lewd detail. By 1955, Confidential was the bestselling publication on American newsstands, forcing many to question the scope of freedom of the press and society's moral obligation to censor indecent content. Ultimately, a slew of libel and obscenity lawsuits against the magazine - concluding in an infamous 1957, star-studded Los Angeles trial – led to Confidential's downfall.

Confidential Confidential provides readers an insider's view on how the magazine obtained its juicy stories and established the foundation for such future gossip publications as People, the National Enquirer and TMZ. Confidential's legacy endures in our ongoing obsession with sensationalism, gossip, and celebrity scandal.

Wilson-Buford, "Policing Sex and Marriage in the American Military"

New from the University of Nebraska Press: Policing Sex and Marriage in the American Military: The Court-Martial and the Construction of Gender and Sexual Deviance, 1950–2000 (Nov. 2018), by Kellie Wilson-Buford (Arkansas State University). A description from the Press:

The American military’s public international strategy of Communist containment, systematic weapons build-ups, and military occupations across the globe depended heavily on its internal and often less visible strategy of controlling the lives and intimate relationships of its members. From 1950 to 2000, the military justice system, under the newly instituted Uniform Code of Military Justice, waged a legal assault against all forms of sexual deviance that supposedly threatened the moral fiber of the military community and the nation. Prosecution rates for crimes of sexual deviance more than quintupled in the last quarter of the twentieth century. 

Drawing on hundreds of court-martial transcripts published by the Judge Advocate General of the Armed Forces, Policing Sex and Marriage in the American Military explores the untold story of how the American military justice system policed the marital and sexual relationships of the service community in an effort to normalize heterosexual, monogamous marriage as the linchpin of the military’s social order. Almost wholly overlooked by military, social, and legal historians, these court transcripts and the stories they tell illustrate how the courts’ construction and criminalization of sexual deviance during the second half of the twentieth century was part of the military’s ongoing articulation of gender ideology.

Policing Sex and Marriage in the American Military provides an unparalleled window into the historic criminalization of what were considered sexually deviant and violent acts committed by U.S. military personnel around the world from 1950 to 2000.

A few blurbs:

“A far-reaching and harrowing analysis of the American military justice system’s policing of marital and sexual lives of service members during the second half of the twentieth century. . . . [This is] an original and important contribution to the historiography on gender and sexuality studies in the American military.”—Aaron Belkin

“Essential to the study of gender, sexuality, military culture, and crime, each of which matters in distinct but related academic disciplines and to policy-making and social justice advocacy. . . . [This book] reveals the U.S. military’s practice with respect to crime, sex, and marriage in a way that will enrich the fields of gender and sexuality studies. It makes [both] careful and novel arguments.”—Elizabeth L. Hillman

More information is available here.

CFP: White Slavery in Transnational and International Context

[We have the following call for papers.]

White Slavery in Transnational and International Context, 1880-1950.  June 21, 2019, University of Warwick (UK).  Keynote: Brian Donovan ((University of Kansas)

This is a call for abstracts for paper, poster and creative presentations for a one day interdisciplinary conference on white slavery, as trafficking in women was historically called. The conference seeks to question how white slavery manifested in transnational and international contexts but welcomes papers on any localities.

We welcome papers exploring different aspects of white slavery from nationalism to visual representations, and their impact on anti-white slavery legislation. The conference seeks to investigate white slavery and its legacies from conceptual, legal, popular culture perspectives. It also seeks to place it in relation to wider themes of nationalism, race, gender, and labour, and question how white slavery relates to critiques of modernity.

We invite paper and poster presentations from range of disciplines that explore how white slavery manifested in these different contexts, in different localities, during the years 1880- 1950. The conference is particularly interested in exploring white slavery through the following themes:

* Race, nationality and nationalism
* Regulation / criminalisation of white slavery in domestic and international sphere
* Rhetoric of slavery and neo-abolitionism
* Age, innocence and purity
* Agency, autonomy and free will
* Gender; trafficking in boys / men
* Migration and gendered labour
* Critique of modernity
* White slavery in popular culture / media

We also welcome creative responses to the subject, and in particular poster presentations that engage the audience and foster debate on the conference themes. PG students at any stage of their studies are particularly encouraged to submit proposals for posters or other visual presentations. Poster presentations must be printed in advance of the conference and be size A1, either portrait or landscape (H: 84.1cm x W: 59.4cm); and you have to present in person. Poster session participants populate boards with pictures, data, graphs, diagrams, narrative text, and more - and will informally discuss their presentations with conference attendees during an assigned session.

Please send 300-word abstract for papers and 200-word abstracts for posters with a short bio to the organisers. Deadline is 31 January 2019. PG bursaries may be available.

Dr Catherine Armstrong (Loughborough University) C.M.Armstrong@lboro.ac.uk  and Dr Laura Lammasniemi (University of Warwick) laura.lammasniemi@warwick.ac.uk

McClain on Loving, Obergefell and the "Right Side of History"

Linda C. McClain, Boston University School of Law, has posted Prejudice, Moral Progress, and Being “On the Right Side of History”: Reflections on Loving v. Virginia at Fifty, which appears in Fordham Law Review 86 (2018): 2701-2715:

What does it mean to be on the “right” or “wrong” side of history? When Virginia’s Attorney General explained his decision not to defend Virginia’s “Defense of Marriage Law” prohibiting same-sex marriage, he asserted that it was time for Virginia to be on the “right” rather than the “wrong” side of history and the law. He criticized his predecessors, who defended the discriminatory laws at issue in Brown v. Board of Education, Loving v. Virginia, and United States v. Virginia. Loving played a crucial role in the majority opinion in Obergefell v. Hodges, even as the dissenters disputed its relevance; it continues to feature in post-Obergefell controversies over religious liberty and LGBT rights. Looking back at the record in Loving, this article argues that Loving illustrates a theme of generational moral progress in constitutional interpretation: laws once justified by appeals to nature, history, tradition, divine law, and the well-being of children and society are repudiated as rooted in prejudice. Virginia sought to distance its antimiscegenation law from prejudice and white supremacy by appealing to social science that identified problems posed by “intermarriage” -- particularly for children -- and rejected the idea that intermarriage was a path toward progress and freedom from prejudice. Countering with narratives of constitutional moral progress, the Lovings and their amici argued that Virginia’s law was an odious relic of slavery and a present-day reflection of racial prejudice, unsupported by modern science. The article concludes with a look at Obergefell, and the competing arguments southern states made about Loving and the lessons of history.